Zahniser v. Pennsylvania Torpedo Co., Ltd.

• Decision Date: 20 March 1899
• Docket Number: 197
• Citation: 190 Pa. 350,42 A. 707
• Parties: M. L. Zahniser, H. B. Zahniser and John R. Rush, trading as the East End Oil Company, and Dr. J. C. Russell, S. N. Russell and Mary E. Rush, Appellants, v. The Pennsylvania Torpedo Company, Limited
• Court: Pennsylvania Supreme Court

42 A. 707

190 Pa. 350

M. L. Zahniser, H. B. Zahniser and John R. Rush, trading as the East End Oil Company, and Dr. J. C. Russell, S. N. Russell and Mary E. Rush, Appellants, v. The Pennsylvania Torpedo Company, Limited

No. 197

Supreme Court of Pennsylvania

March 20, 1899

Argued October 22, 1898

Appeal, No. 197, Oct. T., 1898, by plaintiffs, from order of C.P. Butler Co., Sept. T., 1897, No. 27, refusing to take off nonsuit. Affirmed.

Trespass for injuries to an oil well.

On a motion to take off a compulsory nonsuit, GREER, P.J., filed the following opinion:

This is a motion to take off a compulsory nonsuit, entered by the court, on which an argument was heard March 11, 1898. The plaintiffs allege that the defendant company, whom they employed to shoot an oil well, did it negligently and shot it at the wrong place, thereby impairing and destroying it, and that they are seriously injured, and bring this action to recover damages to compensate them for their loss. The proof shows that immediately before the agent of the defendant company put in the shot he had the bailer run to the bottom of the hole which indicated that it was clear of obstructions; that he then put in the shell and loaded it with nitroglycerine, lowered it in the well and fired it, the plaintiffs claiming 200 feet or more above where they had directed it to be fired. No one knows exactly where it was exploded, but the testimony would indicate over 1,000 feet down and some 200 feet or more above the point desired.

This is an action for damages on account of negligence, and the law makes it the duty of the plaintiffs to prove negligence. In this I am of opinion the plaintiffs utterly failed, and for that reason it was taken from the jury and a compulsory nonsuit entered.

The plaintiffs allege it was the duty of the shooter to run a measuring line and discover the actual location of the shot when fired. This may be true, but they offered no proof to show he did not do so. When he fired the shot all spectators left the ground, to get out of danger; the shooter was alone and no one knows what he did. Since that time he has met his death at this most hazardous business, and was not in court to inform the jury what he did. If he ran a measuring line we have a right to presume he fired the shot at the point desired and fired it properly. We have no proof whatever to the contrary. The hole was clear when the bailer passed down and up, and he would have been justified in believing it was still clear for the short time in which he was preparing and lowering the shell, and I think that his duty did not require him to take any further precautions. However, we have no evidence that he did not take all the precaution known to the business or in his power; to hold otherwise would be upon presumption only.

Now March 19, 1898, on due consideration, the motion to take off the nonsuit is refused and the prothonotary is directed to enter judgment for the defendant.

Error assigned was in refusing to take off nonsuit.

Judgment affirmed.

J. M. Galbreath, with him John M. Thompson, W. C. Thompson and J. B. McJunkin, for appellants. -- This case belongs to a class of cases in which the presumption of negligence arises out of the happening of the event causing the injury or damage. The maxim res ipsa loquitur applies: Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497; Jaggard on Torts, sec. 265.

T. C. Campbell, with him James W. Lee and John B. Chapman, for appellee. -- The maxim res ipsa loquitur has no application in the case of an accident which is claimed to have happened through the negligence of the defendant, where the cause of the accident is known to a certainty: Long v. Penna. R. Co., 147 Pa. 343; Fleming v. Pittsburg, etc., Ry. Co., 158 Pa. 130; Buck v. Penna. R. Co., 150 Pa. 170; Stearns v. Ontario Spinning Co., 184 Pa. 519; Penna. R. Co. v. Barnett, 59 Pa. 259; McKee v. Bidwell, 74 Pa. 218; Baker v. Fehr, 97 Pa. 70; Phila. & Reading R.R. Co. v. Heil, 5 W.N.C. 91; Goshorn v. Smith, 92 Pa. 435; Penna. R. Co. v. Fries, 87 Pa. 234; Allison Mfg. Co. v. McCormick, 118 Pa. 519.

Before GREEN, WILLIAMS, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The learned judge below entered a nonsuit on the ground that no negligence had been shown on the part of defendant, and it is conceded here by the appellant that no affirmative evidence was given of any negligent act either of omission or commission. But the argument is that the result showed that the torpedo had not been lowered to the proper place, but had been shot at a point some 200 feet too far up above the bottom of the well, and that that could only have happened by the negligence of defendant's workman, Brown. In other words, appellant claims that under the circumstances it was entitled to have the jury draw the inference of negligence from the happening of the injury alone.

That such inference may sometimes be drawn is true, but the cases are exceptional. The maxim res ipsa loquitur is itself the expression of an exception to the general rule that negligence is not to be inferred but...